be employed by the Department of Justice. Government Exhibit 21.
The defendant, the Attorney General, moves for summary judgment,
claiming that no reasonable person could find that the Fraud Division's
withdrawal of the offer was the result of retaliation for the law suit
challenging her firing in the South District of Texas as sexually
Judicial consideration of such a motion requires application of certain
bedrock principles that are familiar in Title VII litigation.
First, claims of discrimination and retaliation must most often be
established circumstantially. The courts are sensitive to the reality
that "smoking guns," i.e., direct evidence or admissions of an improper
motive, are rarely available. See e.g. Gant v. Wallingford Board of
Education, 195 F.3d 134, 152 (2d Cir. 1999). By necessity, the jury must
be permitted to draw inferences*fn1 from evidence that permits either of
two directly opposed propositions of fact, one of which establishes
discrimination or retaliation and the other that does not. Hence, once
the court finds such evidence, its function on summary judgment is
exhausted for plaintiff has met her burden of establishing evidence upon
which a reasonable person could premise a verdict in her favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (summary judgment
inappropriate if factual issues can be resolved in favor of either
Second, as the court of appeals has recently reminded this Court (and
me in particular) questions as to the credibility of witnesses are
entirely for the jury. Athridge v. Rivas, Nos. 01-1785 & 01-1786
(D.C. Cir. Dec. 17, 2002). In determining whether there is a reasonable
evidence upon which a jury could return a verdict, the court must resist
any temptation to assess credibility in any way. Thus, and most
basically, the opponent of a summary judgment motion meets her burden by
presenting a witness who will testify in support of a certain material
proposition, unless, of course, the substance of the testimony is
factually impossible, i.e., the sun shines at night.
Third, the jury's exclusive right to assess credibility invokes the
cognate principle, familiar to Title VII jurisprudence, that the jury's
disbelief of a witness's testimony permits it to draw the inference that
the witness's motivation to lie is to disguise that the real reason for
his actions were discriminatory or retaliatory. Waterhouse v. Williams,
298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Reeves, 530 U.S. at 147).
Application of these familiar principles to this case compels the
conclusion that the government's motion must be denied. A critical
element of the Fraud Division's decision was Serres's conversation with
Morrissette; no one is pretending that the conversation in which Serres
described Weidel's performance as a "disaster" was not significant in the
ultimate decision the Fraud Division made. Yet, Serres's opinion of
Weidel comes burdened with the reality that Weidel has complained that
Serres discriminated against her when she worked in Texas and that Weidel
lawsuit pending in Texas where Serres's behavior towards Weidel is
a central issue.*fn2 Whether Serres's opinion of Weidel's ability to get
along with other people was objective or was motivated by a retaliatory
animus for her EEO complaint is a pristine, perfect example of a genuine
issue of fact that the jury and the jury alone should determine.
Ascertaining why a witness has done or said something necessarily
involves assessing the truthfulness*fn3 of his testimony. It is,
therefore, hardly surprising that the federal courts have persistently
indicated that questions of motive and intent cannot be resolved on
Weidel can also establish the untruthfulness of Serres's criticism by
trying to isolate it as aberrational in the context of her career.
Positive evaluations of Weidel's ability to get along with other people,
that contradict Serres's assertion of her inability to do so, support
Weidel's contention that Serres is not telling the truth and permits the
inference that his real reason for criticizing her was retaliatory.
Evidence that Weidel marshals in her Opposition contradicting Serres's
criticism of her*fn5 is therefore also evidence upon which a jury can
predicate a verdict in her favor.
Finally, the government cannot insulate Serres's comments from the
decision made in Washington not to hire plaintiff. A chain is as weak as
its weakest link. If the jury believes that Serres's motive in
criticizing Weidel was retaliatory, and that it influenced the decision
the Fraud Division made, the jury could also find that Serres's criticism
of her, premised on a retaliatory motive, was the real reason for her not
getting a job in the Fraud Division. See Brown v. Brody, 199 F.3d 446,
453 (D.C. Cir. 1999) (plaintiff in retaliation action must establish
I find that there is a genuine issue of material fact as to Serres's
motivation in the criticism of Weidel that Serres
Morrissette. I will, therefore, deny Defendant's Motion for Summary
Judgment. An Order accompanies this Memorandum Opinion.
Pursuant to the accompanying Memorandum Opinion, it is, hereby,
ORDERED that Defendant's Motion for Summary Judgment [#44] is DENIED.